Summary:
Constitutional
law – right to education in terms of s 29(1)(a)
of the Constitution – content of right discussed –
Department of Basic Education adopting clear national policy that
each learner must be provided with a textbook for each subject before
commencement of the academic year – Department failing
to do so
in respect of some learners in Limpopo – held that the
Department had given content to s 29(1)(a)
– right immediately realisable – held accordingly that
the Department’s failure to provide textbooks to each
learner
infringes their right to basic education – held further that
failure to provide textbooks to a small number of students
in Limpopo
amounted to unfair discrimination against them – order of court
a quo requiring Department to deliver textbooks
and report to
respondents accordingly confirmed and appeal dismissed – in
addition, cross-appeal upheld and declaration made
that Department in
breach of previous court orders concerning delivery of textbooks.

ORDER

On
appeal from:
Gauteng Division of the High Court, Pretoria (Tuchten J sitting as
court of first instance).

The
following order is made:

1.
The appeal is dismissed with costs including the costs of two
counsel.

2.
The cross-appeal in relation to the failure by the court below to
declare that there had been non-compliance by the Department
of Basic
Education with the court order granted by Kollapen J is upheld with
costs including the costs of two counsel.

3.
The following orders are
substituted for the orders of the Gauteng Division of the
High Court:

‘1.
It is declared that s 29(1)(a)
of
the Constitution entitles every learner at public schools in Limpopo
to be provided with every textbook prescribed for his or
her grade
before commencement of the teaching of the course for which the
textbook is prescribed.

2
It is declared that it is the duty of the State, in terms of s 7(2)
of the
Constitution, to fulfil the s 29(1)(a) right of every
learner by providing him or her with every textbook prescribed for
his or her grade before commencement of the teaching
of the course
for which the textbook is prescribed.

3
It is declared that the National Department of Basic Education and
the Limpopo
Department of Education violated the s 29(1)(a), s
9 (equality) and s 10 (dignity) right of learners in Limpopo in 2014
by failing to provide all of them with every prescribed textbook
before commencement of the teaching of the courses for which they
were prescribed.

4
It is declared that the National Department of Basic Education and
the Limpopo
Department of Education failed to comply with paragraph 6
of the order made by Kollapen J on 4 October 2012 that they “deliver
all textbooks to schools for grades 4, 5, 6 and 11 for the 2013 year
by 15 December 2012”.

5
The respondents are ordered to pay the applicants’ costs
including
the costs of two counsel.’

JUDGMENT

Navsa
JA (Lewis, Cachalia, Petse and Dambuza JJAconcurring):

[1]
Frederick Douglass, a former slave and eminent America human rights
leader in the abolitionist movement understood the liberating
power
of books and their connection to education and the fulfilment of
human potential. He said:

More
recently Kofi Annan, the former United Nations Secretary General,
said:

‘Literacy
is a bridge from misery to hope. It is a tool for daily life in
modern society. It is a bulwark against poverty and a building
block
of development, an essential complement to investments in roads,
dams, clinics and factories. Literacy is a platform for
democratization, and a vehicle for the promotion of cultural and
national identity. Especially for girls and women, it is an agent
of
family health and nutrition. For everyone, everywhere, literacy is,
along with education in general, a basic human right.’[2]

The
world has progressed from being limited to printed works and has
moved to the technological wonders of electronic media. The
advent of
electronic reading materials has not lessened the impact of the
expressions cited above. If anything, there has been
an explosion of
information which has rendered reading in the modern world all the
more important. This case is about the importance
of textbooks in
schools and it explores the role that they play in a child and
adult’s right to a basic education.

[2]
The following extended definition of the term ‘textbook’
was supplied by the appellants in affidavits filed on their
behalf in
the court below:

‘[A]
publication of systematically organised activities and background and
information on the content to be taught, comprehensive
enough to
cover the primary objectives outlined in the curriculum of a
particular subject for the entire grade. A textbook contains
exercises, problems, and practice material to clarify and reinforce
the lessons presented by the teacher. Learners can use it to
practise
what they are learning in class. It contains learner activities that
are graded, scaffolded and are based on the curriculum
of the
subject/grade. It also provides resource information and background
reading on the subject, and, in the case of languages,
it may provide
texts for the different genre. Lastly, a textbook has assessment
activities and rubrics.’

Textbooks
in the South African context assume a special significance due to the
fact that in prescribing textbooks the DBE laudably
ensures, not only
that cognitive development is taken into account, but also that
Constitutional values are instilled.

[3]
The recent countrywide protests by students enrolled at tertiary
educational institutions, demanding further education free
of charge,
captured the nation’s attention and has brought into focus the
plight of those without the means to realise their
full potential
through further education. The present case however, addresses a more
foundational issue. It concerns the rights
of learners at public
schools and the question that requires to be addressed is whether the
right to a basic education, guaranteed
by the Constitution, includes
the right of learners at public schools to be provided with a
textbook for each subject in time for
the commencement of the
teaching of the curriculum at the beginning of the school academic
year. The appellants’ assertion
that the guarantee of the right
to a basic education set out in s 29(1)(a)
of the Constitution is not one cast in absolute terms and its
justification for not providing a textbook to each learner in the
geographical area in question will be considered. It must be said, at
the outset, that it is common cause that the affected learners
are
from poor communities and are mostly, if not exclusively, located in
rural areas. They are also overwhelmingly, if not exclusively,
black
learners. The schools in question are ‘no fee’ schools
and were not granted permission in terms of s 21(c)
of the South African Schools Act 84 of 1996 (SASA) to purchase
textbooks, educational materials or equipment for the school on their
own. They are restricted to performing
their functions in terms of s
20 of SASA.

[4]
The answer to the question posed in this appeal can only follow upon
a full interrogation of the obligations of the appellants
in terms of
s 29(1)(a)
of the Constitution. Before embarking on that exercise, alongside a
consideration of the genesis and background to the litigation,
it is
necessary at the outset to identify the litigating parties.

[5]
The first appellant is the Minister of Basic Education (the
Minister), cited in her capacity as the head of the Department of
Basic Education (the DBE). She bears the responsibility for
determining school education policies and for administering a budget
sanctioned by Parliament. She also holds ultimate responsibility for
ensuring Constitutional and statutory compliance. The second
appellant is the Director-General of Basic Education who is
responsible for the implementation of measures to that end. The third
appellant is the Member of the Executive Council in the Limpopo
Department of Education (the MEC), who would, in the ordinary course,
have been responsible for the delivery of textbooks in the Province.
It is common cause that at material times the Limpopo Provincial
Administration was dysfunctional and the National Executive
intervened in the Provincial administration in terms of s 100 of the
Constitution[3] and consequently
the Minister assumed responsibility for the Limpopo Department of
Education (the LDOE).[4] The
fourth appellant is the Acting Head of the Limpopo Department of
Education who, in the ordinary course, would have been tasked
with
the implementation of measures for the realisation of the right to
basic education in the Province, which would include seeing
to the
procurement and delivery of textbooks. The fifth appellant is the
head of the intervention team in the LDOE. For purposes
envisaged in
s 100 of the Constitution, the head of the intervention team acts on
behalf of the Minister during the intervention
period.

[6]
The first respondent is Basic Education For All (BEFA), a voluntary
association based in Limpopo. BEFA was inaugurated on 6
October 2012,
in response to the education crisis in Limpopo. Its members include
school principals, teachers, parents, members
of school governing
bodies (SGBs), learners and concerned community members. According to
BEFA it seeks to promote and protect
the right to basic education for
learners in Limpopo. BEFA litigated not only in its own interest, but
also in the interests of
all public schools in Limpopo that were
affected by the non-delivery of textbooks. The second to twenty third
respondents are SGBs
of 22 schools. The 22 schools are a mix of
primary and secondary schools. The South African Human Rights
Commission (the SAHRC),
the 24th
respondent, participated in the court below and before us because of
its involvement in investigating the procurement and delivery
of
school textbooks in Limpopo and because in the view of the other
respondents it could play a role in monitoring the delivery
of
textbooks pursuant to the order contemplated and sought by them.

[7]
Save where it is necessary to make a distinction, I shall refer to
the appellants as the DBE and the respondents as BEFA. I
now turn to
deal with the background to the litigation leading up to the present
appeal.

[8]
During 2012 the DBE formulated and adopted a new national education
curriculum, predicated on the new Curriculum and Assessment
Policy
Statements (CAPS). The new CAPS curriculum revised the content and
learning material of each learning area. Consequently,
new textbooks
were prescribed and it was necessary to see to it that they were
available for use in time for the ensuing academic
year.

[9]
The ‘roll-out’ of CAPS was structured incrementally and
phased in over a three-year period. In 2012 grades 1, 2,
3 and 10
were taught under CAPS for the first time. In 2013 CAPS was
introduced in grades 4, 5, 6 and 11. In 2014, to complete
the
picture, it was introduced in grades 7 to 9 and 12.

[10]
It should be acknowledged that the Department of Basic Education
faced the difficulty, during the phasing-in period, of running
a new
and old curriculum side by side for different grades. It also meant
that considerable human and financial resources had to
be harnessed
to meet the challenge. The task was compounded when the Limpopo
Provincial Government became dysfunctional and the
National Executive
intervened in terms of s 100 of the Constitution. In an affidavit
filed on behalf of the SAHRC it acknowledges
that the delivery of
education in South Africa presented challenges of a peculiar kind. It
became involved in investigating the
associated problems because of
the crisis in 2012 in relation to the non-delivery in Limpopo of
learner and teacher support material
including textbooks. It also
registered as a major problem the lack of ability on the part of the
DBE to monitor the delivery of
textbooks in provinces. The problem
was exacerbated by the failure to maintain an accurate database.

[11]
In order to facilitate the roll-out of the new curriculum and to
assist in meeting the logistical problems associated with
the
procurement and delivery of the necessary textbooks across extensive
geographical areas a national catalogue of prescribed
textbooks was
compiled by the DBE, in-line with CAPS criteria, which included
cognitive development and constitutional values.
As the phasing-in of
CAPS progressed, old Provincial Education Department catalogues were
discarded. By 2014 the national catalogue
was completed so as to be
utilised for the procurement of textbooks. It was left to each of the
nine Provincial Departments of
Education to procure textbooks at the
start of each academic year. In Limpopo the procurement and delivery
did not go smoothly.
In fact it appears to have been chaotic. I will,
in due course, deal with the DBE’s version for the delay in
procuring and
delivering the full complement of textbooks required by
public schools in order for each child in every grade to be in
possession
of a textbook for each subject before the commencement of
the academic year.

[12]
The problems in relation to the procurement and delivery of school
textbooks were peculiar to Limpopo Province. Before us counsel
on
behalf of the DBE conceded that, to the best of his knowledge, the
shortfall delivery of textbooks, which is the principal complaint
in
the current case, did not pertain to other provinces in South Africa.
Counsel also admitted that at the time of the intervention
by the
National Executive referred to above, there was an education crisis
in Limpopo.

[13]
In 2012, with half of the academic year already completed, textbooks
in respect of the introduction of the first phase of the
CAPS for
grades 1, 2, 3 and 10, had not been delivered to schools in Limpopo.
It is undisputed that the delivery of textbooks only
started taking
place after the grant of a court order by Kollapen J on 17 May 2012,
pursuant to an application launched in the
Gauteng Division of the
High Court, Pretoria, by SECTION 27, a public interest litigation
entity, which in the present litigation,
acts as the respondents’
attorney. In terms of that order it was declared that the failure of
the LDOE and the DBE to provide
textbooks to those schools was a
violation of the learners’ rights to a basic education,
equality, dignity, the SASA and
s 195 of the Constitution. The LDOE
or the DBE were also directed to provide textbooks for grades 1, 2, 3
and 10 on an urgent basis,
commencing on 31 May 2012 and concluding
by no later than 15 June 2012. Furthermore, the DBE and the LDOE were
ordered to develop
a catch-up or remedial plan for affected grade 10
learners. They were also ordered to submit monthly reports with
regard to the
implementation of the plan. The judgment in that case
is reported sub
nom Section 27 & others v Minister of Education & another
2013 (2) SA 40 (GNP).[5]

[14]
It is common cause that the time scales set out in the order referred
to above were not met. The parties differed on the extent
of the
DBE’s failure to comply with that order. It is, however, also
common cause that the DBE had failed to comply in full
with the court
order. That failure necessitated further litigation during June 2012,
resulting in a settlement agreement, in terms
of which an amended
time table was agreed for the delivery of textbooks and provision was
made for further progress reports to
be provided by the DBE in
relation to the catch-up plan. In terms of that agreement, the
appellants undertook to complete delivery
of textbooks to learners by
27 June 2012. The appellants also undertook to provide daily progress
reports on their efforts to deliver
the required textbooks. That
settlement agreement was made an order of court by Kollapen J on 5
July 2012.

[15]
According to BEFA the progress reports did not match the complaints
that SECTION 27 continued to receive relating to the shortfall
in
delivery of textbooks. The parties to the prior litigation had agreed
to appoint an independent person, Professor Mary Metcalfe,
to verify
the progress reports, she reported as follows:

‘72.1
On 27 June 2012, only 15 % of textbooks had been delivered to
schools, and not 99 % as reported by the DBE;

72.2
On 3 July 2012, 48 % of schools had received their textbooks;

72.3
On 11 July 2012, 22 % of schools were still awaiting delivery of
their textbooks.’ Professor
Metcalfe also made recommendations about the procurement and delivery
of the textbooks. Notwithstanding the stated shortcomings
in the
report regarding the delivery of textbooks in the report, the DBE
denied publicly that there were any textbook shortages.
It is common
cause that Professor Metcalfe’s recommendations were not
implemented.

[16]
In the face of the DBE’s public denials regarding the short
delivery of textbooks, yet further litigation ensued, resulting
in
Kollapen J granting another order declaring that there had been
non-compliance with the prior orders. The DBE and the LDOE were
also
ordered to complete delivery of all outstanding textbooks for 2012
for grades 1, 2, 3 and 10 by 12 October 2012 and to deliver
all
textbooks for grades 4, 5, 6 and 11 for the 2013 school year by 15
December 2012. For present purposes the ancillary orders
are not
material. The time frames reflected in the order had been agreed by
the parties.

[17]
It is undisputed that in 2013 there was an improvement in textbook
delivery, when compared to 2012. However, there were still
instances
in that year, of non-delivery of textbooks and it appears that by the
time the school academic year commenced in 2013,
some schools had
still not received all the required textbooks for learners in grades
4, 5, 6 and 11. By March 2014 the delivery
of textbooks to learners
in grades 7, 8, 9 and 12 was not completed. There is a dispute about
the extent of the shortfall in the
delivery. However, on the DBE’s
own version, there was a total shortage of at least 22 045
textbooks across all grades
in respect of the 39 schools. That figure
may not take into account shortfalls from previous years in relation
to other grades.
The statistics supplied by the DBE are not entirely
clear.

[18] BEFA alleged that
they repeatedly and extensively engaged the appellants, through
SECTION 27, in attempts to resolve the problems
of under-delivery.
These attempts ultimately proved unsuccessful. According to BEFA it
provided the DBE with all the information
required to facilitate
delivery of outstanding textbooks. BEFA found it disturbing that the
DBE was not in possession of crucial
data, such as accurate details
concerning learner numbers and a complete schedule of textbook
procurement and delivery. As at 26
March 2014, two days before the
end of the first school term, textbook delivery remained incomplete.
BEFA stated that it was concerned
that when learners returned to
school for the commencement of the second term of school, on 7 April
2014, the violation of their
rights would continue. BEFA considered
that the non-delivery of textbooks would impact severely and
negatively on the ability of
learners to prepare adequately for
mid-year exams at the end of the second school term. BEFA was adamant
that there could be no
proper preparation without the essential
prescribed textbooks. These concerns were heightened by continued
reports from numerous
schools experiencing textbook shortages and by
media reports. This led BEFA to launch an urgent application in the
North Gauteng
Division of the High Court, Pretoria, on 27 March 2014
for an order in the following terms:

‘2.
Declaring that the failure by the first to fifth respondents to
ensure the complete delivery of textbooks to all schools in Limpopo
is a violation of the rights to basic education, equality, dignity
and section 165(4) and 195 of the Constitution.

3. Directing the first to fifth
respondents to deliver all outstanding textbooks to the schools
listed in Annexure A to this notice
of motion on an urgent basis and
by no later than 7 April 2014;

4. Directing the first to fifth
respondents to lodge an affidavit with this Court by no later than 7
April 2014 confirming full
delivery of textbooks to the schools
listed in Annexure A to the notice of motion;

5. Directing the first to fifth
respondents to lodge with this Court a plan indicating how they
intend to address textbooks shortages
at schools throughout Limpopo,
such plan to be lodged by no later than 10 April 2014;

6. Directing the sixth respondent to
monitor the full delivery of textbooks by the first to fifth
respondents to the schools listed
in Annexure A to this notice of
motion, as well as their compliance with the plan referred to in
paragraph 5 above, in terms of
its mandate under section 184(1)(c)
of the Constitution to monitor and assess the observance of human
rights;

7.
Granting leave to the Applicants to approach the above Honourable
Court on the same papers, supplemented as the circumstances
may
require, for further relief if necessary.’

[19] The SGBs, who were
among the applicants in the court below, set out the problem
attendant upon mitigating steps employed by
schools to deal with the
non-delivery of textbooks. The assertions by the SGB’s and BEFA
bear repeating:

‘136.1
Some teachers borrow textbooks from neighbouring schools so that they
can write up notes for learners
on the blackboard. This is
unsatisfactory for the following reasons:

136.1.1.
It is not possible to write all the relevant content in detail
on the
blackboard for each lesson.

136.1.2.
It is difficult for all of the learners in class to see clearly
what
is written on the blackboards, in the way that they would if they
were reading a textbook.

136.1.3
Because learners cannot take their learning materials home,
they
cannot complete their homework, prepare for lessons or consolidate
what they learn in class.

136.1.4.
Requiring teachers to write out the content of lessons in full
on the
blackboard is unduly burdensome.

136.2
As such, this is not a satisfactory replacement for full textbook
delivery.

136.3
Teachers borrow textbooks from neighbouring schools to photocopy the
relevant content for learners.
However, this is expensive and cannot
be sustained.

136.4
Schools use outdated textbooks from the previous curriculum. However,
the CAPS curriculum contains
both new content and a new way in which
the content is organised. This is therefore not an appropriate
solution.’

[20]
In seeking the orders set out in para 18 above and in asserting the
centrality of textbooks in the realisation of the right
to basic
education BEFA relied on one of the DBE’s own policy documents.
I quote the material parts:

‘We
cannot expect proper learning and teaching to take place where
learners do not have access to textbooks, workbooks, exercise
books
and stationery during and
after school hours.’
(My emphasis.)

[21]
BEFA insisted that the failure by the DBE to ensure full textbook
delivery was in violation of the rights to education, equality
and
dignity guaranteed by the Constitution. Furthermore, so it was
alleged, it offended against the basic values and principles
concerning public administration in terms of s 195 of the
Constitution. Save for the structural order, the SAHRC was in
substantial
agreement with the relief sought by the respondents.

[22]
In opposing the relief sought by BEFA, the DBE set out the
difficulties associated with the roll-out of a new curriculum and
providing learner and teacher support materials. It explained, in
some detail, how, in addition to textbooks, it provided workbooks
in
which learners were required to write out answers to questions. In
addition to the other materials, the DBE also provided mathematics
and physical science books which are voluminous. According to the DBE
it devised and implemented a procurement and delivery plan
for the
2014 academic year. The plan provided for procurement and delivery to
schools in all of the nine provinces. It appointed
the South African
Post Office (SAPO) as its agent for distributing textbooks in
Limpopo. Its plan was based on learner numbers
provided by the LDOE.
Part of the problem in the distribution process is that publishers do
not hold sufficient stocks of textbooks
and print textbooks upon
demand. Provincial departments were provided with the national
catalogue devised by the DBE and requisitions
by the provinces were
required to be presented. The DBE insisted that the greater part of
the problems associated with shortfalls
in delivery was the incorrect
learner numbers provided by schools in Limpopo, either to the LDOE or
the DBE. The DBE increased
the number of textbooks requested by
schools by five per cent for grades 7 to 9 and 18 per cent for grade
12. This, according to
the principal deponent on behalf of the DBE,
was to correct discrepancies between the submissions from schools and
data that the
LDOE held on its Education Information System database.
Significantly, no information by the DBE is provided for the failure
to
interrogate the discrepancies and to ensure the accuracy of its
own database.

[23]
The following part of the delivery programme, decided after a meeting
between representatives of the LDOE, DBE and representatives
of
schools during December 2013, is noteworthy:

‘In
order to ensure 100 % delivery, the provision of information
timeously by schools, circuits and districts is critical.

A
circular and template was sent to schools, circuits and districts,
with the reporting template for shortages.

All
shortages and non-delivery must be reported immediately by 4 December
2013. All mop-up must be completed by 31 January 2014.’

[24]
In short, the DBE’s case on the logistics of the delivery and
the failure to provide a textbook for every child appears
to be that
it took all the necessary steps to put in place a proper management
plan and that the logistical failure should be laid
at the door of
the 39 schools about which BEFA engaged the Department and other
schools that provided incorrect data. The dysfunctional
Provincial
Government, according to the DBE added to logistical headwinds,
complicating the delivery process. With the advent of
the 2014 school
academic year the DBE placed an order with publishers to print and
deliver 406 520 textbooks during January
2014. On 20 March 2014,
after further reported shortages, the DBE placed an additional order
for a further 387 040 textbooks. The
problems referred to above were
compounded by difficulties that ensued with over-delivery to some
schools by SAPO. Those books
had to be retrieved and rerouted. The
DBE also complained about under-retrieval of books from learners at
the end of an academic
year.

[25]
As recorded above, there is an ongoing dispute between BEFA and the
DBE concerning the precise number of outstanding textbooks.
BEFA was
adamant that it engaged on an on-going basis with the Department in
respect of shortages reported to it and this appears
to be borne out
by correspondence between them. In its replying affidavit, BEFA is
scathing about the failure by the DBE and the
LDOE to maintain
accurate statistics as to the number of schools and learner enrolment
in each school. A reliable database, they
contend, is essential to
ensure proper procurement and delivery in advance of an academic
year. BEFA insisted that it had supplied
the details of textbook
shortages to the DBE on at least seven occasions since January 2014.

[26]
It is also necessary to record that, in opposing the relief sought by
BEFA, the DBE adopted the attitude that it would take
disciplinary
steps against school principals and other officials for channelling
their complaints about short delivery through
SECTION 27 and BEFA
rather than engaging directly with the DBE or the LDOE.

[27]
At the time that the application was launched in the court below, on
the DBE’s own version regarding the 39 schools in
respect of
which it had engaged with BEFA, there was a total shortfall in excess
of 20 000 textbooks across all grades. In a supplementary
opposing
affidavit dated 21 April 2014 the appellants indicated that they were
awaiting a further 158 856 textbooks from publishers.

[28]
The following part of the supplementary opposing affidavit by the DBE
is worth noting:

‘Having
regard to the fact that the total number of 6 945 160
textbooks have been ordered in respect of the CAPS-aligned
curriculum, the current shortfall is approximately 2,29 % thereof.’

According
to the DBE, the shortfall of 2,29 per cent appears to relate to the
total required textbooks for all schools within Limpopo
across all
grades. This is contested by BEFA, who assert that it only relates to
grades 7, 8, 9 and 12. What is clear, however,
is that on the DBE’s
own version, there is still a shortfall of at least 2,29 per cent.

[29]
Having set out the logistical difficulties in relation to the
delivery of textbooks and apportioning blame to schools, the
DBE
resorted to a further justification for failure to deliver textbooks
before the commencement of the 2014 academic year, namely,
budgetary
constraints. It stated that the requisitions presented to it required
an amount of R768 million to procure learner and
teacher support
materials for grades 7 to 9 and 12 alone, whilst only R480 million
was made available to LDOE by the National Treasury
for all grades.
After an accommodation was reached between the DBE, National Treasury
and the Provincial Treasury, a total budget
of R620 million was
raised, of which R475 million was utilised for CAPS aligned
textbooks. This left the DBE and the LDOE with
a shortfall of R293
million to procure learner and teacher support materials for grades
7, 8, 9 and 12. According to the DBE, because
of budgetary
constraints, the LDOE was not in a position to procure any ‘top-up’
textbooks for other grades in respect
of which the CAPS curriculum
was implemented during 2012 and 2013. Thus, a decision was taken that
outstanding books could only
be acquired from the 2014/2015 budget.
The DBE’s financial year commenced on 1 April 2014. The
contention on behalf of the
DBE is that if it were to have authorised
expenditure beyond its budget, its accounting office would have
transgressed the provisions
of the Public Finance Management Act 1 of
1999. The concomitant appears to be that a court cannot make an order
in the face of budgetary constraints which is within the province
of
one or both of the other arms of government. An allied basis for
resisting BEFA’s application was that the order sought,
if
granted, would offend against the doctrine of the separation of
powers. The relevant paragraph of the opposing affidavit is
worth
repeating.

‘Should
that finding be made by the above Honourable Court, the Respondents
have been advised by their legal representatives, that
a Court of law
then will not interfere in the running of the affairs of a Department
on the principle of a separation between executive
and judicial
powers.’

[30]
In adjudicating the application in the court below, Tuchten J
considered the provisions of s 29(1)(a) of the Constitution
and had regard to the decision of the Constitutional Court in
Governing Body of the Juma Musjid Primary School & others v
Essay NO & others (Centre for Child Law & another as Amici
Curiae)[2011] ZACC 13; 2011 (8) BCLR 761 (CC) and said the
following about the right to basic education as provided for in that
subsection of the Constitution (para 52):

‘The
delivery of textbooks to certain learners but not others cannot
constitute fulfilment of the right. Section 29(1)(a)
confers
the right of a basic education to everyone.
If there is one learner who is not timeously provided with her
textbooks, her right has been infringed. It is of no moment at
this
level of the enquiry that all the other learners have been given
their books.

In
paragraph 55 of his judgment, Tuchten J concluded as follows:

‘It
follows then, that because textbooks were not provided to all the
learners in Limpopo before the commencement of the curricula
for
which they were required, ie at the beginning of the academic year,
the rights of learners were violated. It is in my judgment
appropriate, just and equitable that a declaration to this effect
should issue.’

However,
the learned judge declined to grant the structural relief sought by
BEFA. He went on to make the following order:

‘1.
It is declared that the content of the right to basic education in s
29(1)(a)
of
the Constitution includes:

1.1
the right of every learner at a public school as contemplated in the
Schools Act, 84 of
1996, in Limpopo to be provided with every
textbook prescribed for that learner’s grade;

1.2
the right of every such learner to be provided with every such
textbook before the teaching
of the curriculum for which such
textbook is prescribed is due to commence.

2.
It is declared that the non-delivery to certain of such learners of
certain textbooks
prescribed for such learners’ grades in the
2014 academic year before the teaching of the curricula for which
such textbooks
were prescribed was due to commence was a violation of
such learners’ right to a basic education in s 29(1)(a)
of the Constitution and of their rights to equality and dignity in ss
9 and 10 respectively of the Constitution.

3.
It is noted that the first to fifth respondents have undertaken to
ensure that
delivery to all such learners of all textbooks required
for the 2014 academic year will be completed as follows:

3.1
those textbooks required for grades 7-9 and 12 by 8 May 2014; and

3.2
those textbooks required by the other grades by 6 June 2014;

4.
The first and third respondents are both ordered, to the extent that
each of
them is able to do so, to provide the applicants, through the
applicants’ attorney of record, and the sixth respondent [the
SAHRC] with an affidavit setting out:

4.1
the submissions, with vouchers where reasonably possible, to the
fiscal authorities of the
national Department of Basic Education and
the department of education within the provincial government of
Limpopo in support of
these departments’ requests for funds for
textbooks for learners at public schools in Limpopo for the academic
year 2015;
and

4.2
particulars of the funds so to be made available for that purpose
(“the Limpopo textbook
budget allocation”), similarly
with vouchers where reasonably possible.

5.
The affidavit referred to in paragraph 4 of this order must be
provided to the
applicants by no later than one month after the last
of such respondents has been informed of the Limpopo textbook budget
allocation.

6.
The first respondent must pay the applicants’ costs in this
application.’

[31]
The DBE appeals against those orders and BEFA cross-appeals against
the refusal by Tuchten J to find that the DBE had failed
to comply
with the previous court orders and against his refusal to grant the
structural orders set out in para 18 above. Before
us BEFA did not
persist in pursuing the structural orders and the cross-appeal was
confined to the refusal to hold that the DBE
had failed to comply
with the previous court orders. The appeal and cross-appeal are
before us with the leave of the court below.

[32]
For completeness, it is necessary to record that before us, BEFA
applied to lead further evidence on appeal, which relates
to the
DBE’s failure to comply with the undertakings captured in the
order made by Tuchten J. There was no opposition to
the application
and the court allowed the new evidence. It appears from an
investigation conducted by BEFA, which involved visits
to a number of
schools in Limpopo by its members and also by representatives of the
SAHRC, that the undertakings referred to had
not been complied with.
Fifteen schools were visited between 15 and 16 May 2014, and it was
revealed that eight of them had not
received all the textbooks for
grades 7 to 9, and 12 and that a total of 7 203 textbooks were
outstanding. Fourteen other schools
were visited from 17 to 19 June
2014, and this revealed that in ten of those there was a total of
3 320 textbooks for grades
1 to 6, 10 and 11 outstanding and a
total of 5 685 outstanding for grades 7 to 9 and 12. When
confronted about these breaches,
the DBE’s attorneys appeared
to blame the publishers for not adhering to time frames. The facts
stated in the new evidence
that we allowed were not contested.

[33]
It is difficult to discern from the affidavits in the court below
what the parameters of the DBE’s case are. At first
blush it
appears to be that it had attempted as best as possible to comply
with its obligations to provide the necessary learner
and teacher
support materials, but was hampered by a lack of co-operation on the
part of affected schools. It relied on budgetary
constraints as a
further justification and considered the relief sought to be beyond
the reach of a court. In that regard it invoked
the doctrine of the
separation of powers. Before us counsel on behalf of the DBE was
hard-pressed to present a coherent basis for
resisting the relief
sought by BEFA. Counsel submitted that the relief sought demanded a
standard of perfection that could not
be met. Primarily, though, the
DBE’s case appeared to be that s 29(1)(a)
of
the Constitution did not require of it that each
learner
in every school be provided with a textbook. The DBE considered the
mitigating measures it had suggested and that had been taken
by
schools to deal with the shortage of textbooks, to be enough to meet
the obligation to provide a basic education in terms of
s 29(1)(a)
of
the Constitution. It will be recalled that, as reflected in para 19
above, teachers were required to write the content of textbooks
on
blackboards for those learners who did not have textbooks to copy and
schools that did not have textbooks were required to consider
borrowing textbooks from neighbouring schools in order to photocopy
the relevant content. Lastly, schools were required to use
textbooks
from the previous curriculum whilst bearing in mind the differences
in methodology. BEFA and SGB’s responses to
these mitigating
measures are as set out above.

[34]
It was also contended on behalf of the DBE that the order granted by
the court below was such that it involved an intrusion
into the
territory of the other arms of government and that it violated the
doctrine of the separation of powers. I turn to deal
with whether
there is any merit to the DBE’s resistance to the application
by BEFA.

[35]
As always, when there is an assertion of a violation of a fundamental
right the starting point is the relevant provision of
the
Constitution. In this case it is s 29(1)(a) that requires
scrutiny. Section 29 reads as follows:

‘(1)
Everyone has the right –

(a)
to
a basic education, including adult basic education; and

(b)
to
further education, which the state, through reasonable measures, must
make progressively available and accessible.’

[36]
In Juma
Musjid[6]the
Constitutional court compared s 29(1)(a)
to
other socio-economic rights, for example, the right to housing under
s 26 of the Constitution. Section 26(2) provides that the
State ‘must
take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation
of this right’.
Section 29(1)(a)
has
‘no internal limitation requiring that the right be
“progressively realised” within “available
resources”
subject to “reasonable legislative measures”.’
The Constitutional Court stated emphatically that the right to
a
basic education entrenched in s 29(1)(a)
is ‘immediately realisable’ and may only, in terms of s
36(1) of the Constitution, be limited in terms of a law of
general
application that is ‘reasonable and justifiable in an open and
democratic society based on human dignity, equality
and freedom’.[7]

[37]
The right in s 29(1)(a)
is distinct from the right to ‘further education’
provided for in s 29(1)(b).
In Juma
Musjid, the
Constitutional Court considered it important that the legislature, in
recognising the distinction between ‘basic’
and ‘further
education’, made attendance at school compulsory in terms of s
3 of SASA for learners from the age of
seven until the age of 15 or
until he or she reached the ninth grade, whichever occurred first.[8]
The Constitutional Court took the view that the aforesaid statutory
provision, read with the entrenched right to basic education
in s
29(1)(a)
of
the Constitution, indicated ‘the importance of the right to
basic education for the transformation of our society’.[9]
In Head
of Department, Mpumalanga Department of Education & another v
Hoërskool Ermelo & another[2009] ZACC 32; 2010 (2) SA 415 (CC), the Constitutional Court
recognised the importance of education in redressing the entrenched
inequalities caused by apartheid
and its significance in transforming
our society. Moseneke DCJ said the following: (paras 45-47)

‘Apartheid
has left us with many scars. The worst of these must be the vast
discrepancy in access to public and private resources.
The cardinal
fault line of our past oppression ran along race, class and gender.
It authorised a hierarchy of privilege and disadvantage.
Unequal
access to opportunity prevailed in every domain. Access to private or
public education was no exception. While much remedial
work has been
done since the advent of constitutional democracy, sadly, deep social
disparities and resultant social inequity are
still with us.

It
is so that white public schools were hugely better resourced than
black schools. They were lavishly treated by the apartheid
government. It is also true that they served and were shored up by
relatively affluent white communities. On the other hand, formerly
black public schools have been and by and large remain scantily
resourced. They were deliberately funded stingily by the apartheid
government. Also, they served in the main and were supported by
relatively deprived black communities. That is why perhaps the
most
abiding and debilitating legacy of our past is an unequal
distribution of skills and competencies acquired through education.

In
an unconcealed design, the Constitution ardently demands that this
social unevenness be addressed by a radical transformation
of society
as a whole and of public education in particular.’

[38]
The legislature took seriously its constitutional obligations in
relation to the right to basic education. Section 12 of SASA
makes it
incumbent upon the MEC to provide public schools for the education of
learners out of funds appropriated for that purpose
by the provincial
legislature. In the period of an intervention by the National
Executive the Minister is required in terms of
s 100 of the
Constitution to take any ‘appropriate steps’ to ensure
the fulfilment of a province’s executive
obligations.
Importantly, in terms of sections 44 and 104 read with Schedule 4 of
the Constitution, education (excluding tertiary
education) is a
functional area of concurrent national and provincial legislative
competence.

[39]
In terms of s 3 of the National Education Policy Act 27 of 1996
(NEPA), the Minister is vested with the power to determine
national
education policy in accordance with NEPA and the Constitution.
Significantly, sections 4(a)(i), (ii) and (iv) of this Act
provide:

‘The
policy contemplated in s 3 shall be directed toward –

(a)the
advancement and protection of the fundamental rights of every person
guaranteed in terms of Chapter 2 of the Constitution, and
in terms of
international conventions ratified by Parliament, and in particular
the right -

(i)
of every person to be protected against unfair discrimination within
or by an
education department or education institution on any ground
whatsoever;

(ii)
of every person to basic education and equal access to education
institutions;

. . .

(iv)
of every child in respect of his or her education.’

[40]
The constitutional and statutory scheme applicable to education is
one in terms of which there is an interconnection between
national
and provincial government to ensure constitutional compliance. The
right to a basic education is thus constitutionally
entrenched and
statutorily enforced. Government, in recognition of its
constitutional obligations has ensured that in the budget
approved by
it, basic education receives the single largest allocation. Its three
year expenditure plan tabled as part of the 2015
budget envisages
expenditure in relation to basic education during that period in
excess of R640 billion.[10] It
cannot be emphasised enough that basic education should be seen as a
primary driver of transformation in South Africa.

[41]
Returning to the provisions of s 29(1)(a)
it
is necessary to recognise, as counsel on behalf of BEFA readily
conceded, that it does not spell out the content of the right
to
basic education. The centrality of textbooks in the realisation of
the right to a basic education is uncontested. The DBE, however,
insisted that the right to a basic education did not mean that each
learner in a class has the right to his or her own textbook.
It
adopts the position that its own policy documents indicate only that
the DBE set itself the ‘lofty’ ideal of providing
a
textbook for each learner but that it could not be held to that ideal
or what it describes as the ‘standard of perfection’.

[42]
I agree with counsel on behalf of BEFA that the DBE did not only set
itself a ‘lofty’ ideal but that its policy
and actions,
as set out in the affidavits filed on its behalf, all indicate that
it had committed to providing a textbook for each
learner across all
grades. The content of the s 29(1)(a)
right is also determined in the DBE’s ‘Action Plan to
2014 – Towards the Realisation of Schooling in 2025’.
That certainly is what it achieved in pursuit of its own policy in
respect of the other eight provinces and on its version of events
for
almost 98 per cent of learners in Limpopo. I also agree with the
contention on behalf of BEFA that in instituting the application
in
the court below, it was merely seeking to hold government to its own
standard. Simply put, the DBE set out to provide a textbook
to every
learner before the start of the 2014 academic year but fell short in
its planning. BEFA sought to hold the DBE to the
standard it set for
itself, practically and not idealistically.

[43]
The truth is that the DBE’s management plan was inadequate and
its logistical ability woeful. One would have expected
proper
planning before the implementation of the new curriculum. This
does not appear to have occurred. The DBE also
had a three-year
implementation period during which it could have conducted proper
budgetary planning, perfected its database,
and ensured accuracy in
procurement and efficiency in delivery. It achieved exactly the
opposite and blamed all and sundry. It
lacked introspection and
diligence. It is notable, and conceded by counsel on behalf of the
DBE, that there is no single statement
anywhere in the affidavits
filed on its behalf to the effect that it would be unable to procure
the funds necessary to meet the
shortfall either at provincial or
national level, utilising existing treasury legislation, including
providing for budgetary changes
during a financial year. The DBE’s
reliance on budgetary constraints and its complaint that the order
granted by the court
below violated the doctrine of the separation of
powers is fallacious and appears contrived. The DBE, the State in the
present
case, had decided on a policy which it started implementing
and shortly before the final, and on its version, minor hurdle, it
stumbled. In the present circumstances, there is no intrusion by the
judiciary into the domain of the other two arms of government.
The
undertaking by the DBE which is encapsulated in para 3 of the order
by Tuchten J and the prior undertakings contained in orders
by
Kollapen J fly in the face of the contention on behalf of the DBE
that it is restricted by budgetary constraints. For all the
reasons
set out in this paragraph the reliance by the DBE on budgetary
constraints can rightly be discounted.

[44]
There is in this case no impediment of any kind to the vindication of
learners’ rights in terms of s 29 of the Constitution.
That
right is, as determined by the Constitutional Court in Juma
Musjid,
immediately realisable.

[45]
‘Our Constitution entrenches both civil and political rights
and social and economic rights. All the rights in our Bill
of Rights
are inter-related and mutually supporting.’[11]
Section 9 of the Constitution provides:

‘(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the
law.

(2)
Equality includes the full and equal enjoyment of all rights and
freedoms. To promote
the achievement of equality, legislative and
other measures designed to protect or advance persons, or categories
of persons, disadvantaged
by unfair discrimination may be taken.

(3)
The state may not unfairly discriminate directly or indirectly
against anyone on one
or more grounds, including race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age,
disability, religion, conscience, belief, culture,
language and birth.

(4)
No person may unfairly discriminate directly or indirectly against
anyone on one or
more grounds in terms of subsection (3). National
legislation must be enacted to prevent or prohibit unfair
discrimination.

(5)
Discrimination on one or more of the grounds listed in subsection (3)
is unfair unless
it is established that the discrimination is fair.’

[46]
I agree with Kollapen J in Section
27[12]that
the failure to provide textbooks to learners in schools in Limpopo in
the circumstances referred to above is a violation of
the rights to a
basic education, equality, dignity, SASA and s 195 of the
Constitution. The Constitutional Court, in Pretoria
City Council v Walker[1998] ZACC 1; 1998 (2) SA 363 (CC), in dealing with s 8 of the
Interim Constitution, which entrenched the right to equality and
equal protection under the law
and which prohibited unfair direct or
indirect discrimination, said the following (paras 30–31):

‘Section
8(2) prohibits unfair discrimination which takes place “directly
or indirectly”. This is the first occasion
on which this Court
has had to consider the difference between direct and indirect
discrimination and whether such difference has
any bearing on the s 8
analysis as developed in the four judgments to which I have referred.

The
inclusion of both direct and indirect discrimination within the ambit
of the prohibition imposed by s 8(2) evinces a concern
for the
consequences rather than the form of conduct. It recognises that
conduct which may appear to be neutral and non-discriminatory
may
nonetheless result in discrimination and, if it does, that it falls
within the purview of s 8(2).’

[47]
In Harksen v Lane NO & others[1997] ZACC 12; 1998 (1) SA
300 (CC), the Constitutional Court set a two-stage enquiry to
determine whether differentiation amounted to unfair discrimination.
The majority of the court said the following (para 54):

‘Firstly,
does the differentiation amount to “discrimination”? If
it is on a specified ground, then discrimination will
have been
established. If it is not on a specified ground, then whether or not
there is discrimination will depend upon whether,
objectively, the
ground is based on attributes and characteristics which have the
potential to impair the fundamental human dignity
of persons as human
beings or to affect them adversely in a comparably serious manner.

If
the differentiation amounts to “discrimination”, does it
amount to “unfair discrimination”? If it has
been found
to have been on a specified ground, then unfairness will be presumed.
If on an unspecified ground, unfairness will have
to be established
by the complainant. The test of unfairness focuses primarily on the
impact of the discrimination on the complainant
and others in his or
her situation.’

[48]
The State is prohibited from unfairly discriminating against any
person whether on listed grounds or not. SASA and NEPA envisage
equality of opportunity for learners. SASA’s preamble
recognises that historically, our education system was based on
racial
inequality and segregation and those past injustices have to
be remedied. Before us the DBE conceded that presently, textbook
shortages
in other provinces is not a problem. On the DBE’s
version, approximately 97 per cent of student across the province
have
textbooks. This means that the approximately three per cent of
the learners who did not receive textbooks were treated
differentially.
They were being discriminated against. There is no
justification for such discrimination. BEFA is litigating on behalf
of all the
learners in the affected schools in Limpopo.

[49]
Clearly, learners who do not have textbooks are adversely affected.
Why should they suffer the indignity of having to borrow
from
neighbouring schools or copy from a blackboard which cannot, in any
event, be used to write the totality of the content of
the relevant
part of the textbook? Why should poverty stricken schools and
learners have to be put to the expense of having to
photocopy from
the books of other schools? Why should some learners be able to work
from textbooks at home and others not? There
can be no doubt that
those without textbooks are being unlawfully discriminated against.

[50]
The DBE did not take issue with international publications cited by
BEFA and the SAHRC[13] which
indicate that, particularly in respect of rural communities, research
has shown that they benefit the most from the use of
textbooks. The
DBE’s attitude was that in the developing countries in which
the research was conducted (which included Uganda,
Malaysia, Chile
and Brazil) there was a ratio between the number of textbooks and
learners and that not every learner was provided
with a textbook. The
countries involved are different from ours. Their constitutional and
statutory schemes in relation to education
are different. In this
country the Minister, acting in terms of the Constitution and
legislation, took a decision that textbooks
were essential to promote
and protect the right to a basic education and devised a plan towards
providing a textbook for every
learner. The plan was flawed. The law
is clear. In the circumstances referred to above, the DBE is obliged
to provide a textbook
to every learner to ensure compliance with s
29(1)(a)
of the Constitution. We must guard against failing those who are most
vulnerable. In this case we are dealing with the rural poor
and with
children. They are deserving of Constitutional protection.

[51]
Tuchten J should have granted the order sought by BEFA declaring that
the DBE had failed to comply with the orders made by
Kollapen J. It
is clear that there was non-compliance by the DBE. The difficulties
that they faced were largely of their own making.
Moreover, similar
to the time frames provided by the order of the court below, there
were undertakings that were made an order
of court by Kollapen J.
These were not complied with.

[52]
There is one further aspect that requires to be addressed. Parts of
the order by Tuchten J have been overtaken by time. It
is thus
necessary to re-craft the order in order to deal with the obligation
of the DBE before the advent of the 2016 school academic
year, and
successive years. For the reasons set out in para 43 above, there is
no need in the re-crafting of the order to deal
with budgetary
issues. What is required is an order setting out in clear terms that
s 29(1)(a)
requires the State to provide each learner in Limpopo with a
prescribed textbook per subject at the commencement of the academic
year.

[53]
The following order is made:

1.
The appeal is dismissed
with costs including the costs of two counsel.

2.
The cross-appeal in
relation to the failure by the court below to declare that there
had
been non-compliance by the Department of Basic Education with the
court order granted by Kollapen J is upheld with costs including
the
costs of two counsel.

3.
The following orders are
substituted for the orders of the Gauteng Division of the
High Court:

‘1.
It is declared that s 29(1)(a)
of
the Constitution entitles every learner at public schools in Limpopo
to be provided with every textbook prescribed for his or
her grade
before commencement of the teaching of the course for which the
textbook is prescribed.

2
It is declared that it is the duty of the State, in terms of s 7(2)
of the
Constitution, to fulfil the s 29(1)(a) right of every
learner by providing him or her with every textbook prescribed for
his or her grade before commencement of the teaching
of the course
for which the textbook is prescribed.

3
It is declared that the National Department of Basic Education and
the Limpopo
Department of Education violated the s 29(1)(a), s
9 (equality) and s 10 (dignity) right of learners in Limpopo in 2014
by failing to provide all of them with every prescribed textbook
before commencement of the teaching of the courses for which they
were prescribed.

4
It is declared that the National Department of Basic Education and
the Limpopo
Department of Education failed to comply with paragraph 6
of the order made by Kollapen J on 4 October 2012 that they “deliver
all textbooks to schools for grades 4, 5, 6 and 11 for the 2013 year
by 15 December 2012”.

5
The respondents are ordered to pay the applicants’ costs
including
the costs of two counsel.’

_________________________

M
S Navsa

Judge
of Appeal

APPEARANCES:

For the
Appellants:
M C Erasmus SC (with E M Baloyi-Mere)

Instructed
by:

The
State Attorney, Pretoria

The
State Attorney, Bloemfontein

For
the First to Twenty Third Respondents:
W Trengove SC (with A Hassim)

[2]This is contained
in a press release from the United Nations entitled
‘Secretary-General stresses need for political will
and
resources to meet challenge of fight against illiteracy‘,
commemorating the celebration of International Literacy Day
on 8
September 1997. Available at
http://www.un.org/press/en/1997/19970904.SGSM6316.html,
accessed 25 November 2015.

(1)When
a province cannot or does not fulfil an executive obligation in
terms of the Constitution or legislation, the national executive
may
intervene by taking any appropriate steps to ensure fulfilment of
that obligation, including -

(a)issuing a
directive to the provincial executive, describing the extent of the
failure to fulfil its obligations and stating any
steps required to
meet its obligations; and

(b)
assuming responsibility for the relevant obligation in that province
to the extent
necessary to –

(i)
maintain essential national standards or meet established minimum
standards
for the rendering of a service;

(ii)
maintain economic unity;

(iii)
maintain national security; or

(iv)
prevent that province from taking unreasonable action that is
prejudicial to the
interest of another province or to the country as
a whole.

(2)If
the national executive intervenes in a province in terms of
subsection (1)(b)
–

(a)it must submit a
written notice of the intervention to the National Council of
Provinces within 14 days after the intervention
began;

(b)
the intervention must end if the Council disapproves the
intervention within 180 days
after the intervention began or by the
end of that period has not approved the intervention; and

(c)
the Council must, while the intervention continues, review the
intervention regularly
and may make any appropriate recommendations
to the national executive.

(3)
National legislation may regulate the process established by this
section.

[4]We were informed
from the bar that the intervention came to an end in January 2015.

[5]The order in the
reported judgment appears to be at odds with the order issued by the
Registrar.